The dark art of choosing outside litigation counsel

Having been an in-house litigation counsel for some time now, I have often been asked what makes a good outside litigator. After all, there are a lot of great lawyers in the world, and two of the central challenges of an in-house litigator are how to pick the right outside lawyers to represent your client, and how to evaluate their performance after they have been retained. You would think that because this is such an essential aspect of being an in-house litigator, we would have gotten it right by now. And you would be wrong.

In fact, there is no consensus within the in-house litigation world about how to choose outside counsel. It is a truly a dark art that some of us have spent many brain cells trying to figure out. Given this lack of agreement within the in-house litigation world, it can hardly be surprising that outside counsel themselves are also uncertain about how they are being evaluated and measured about what their clients want.

Here, I offer my own perspective on what constitutes a good outside litigator for partners looking to make an impression:

It's not about the case. Some of the cases we deal with represent real tragedies. But perhaps one of the most reliable ways of distinguishing “A” lawyers from all others is their ability to understand that, for large companies, their particular case is not that important from a conflict management standpoint. The company is dealing with a flow, sometimes flood of cases, and what it really needs are lawyers who understand that the case they are working on is just a part of a much larger conflict management matrix. Every action taken in your case has to fit within the company's overall strategic direction. Lawyers who understand that have a future with us, lawyers who don’t, do not.

It isn’t about you. Nothing so clearly marks you as a lawyer no company wants to make a long-term investment in as an excessive concern with your own short-term financial well being. In-house lawyers recognize the financial pressures law firm partners operate under today, but we often wonder whether law firm partners understand the financial pressures we are operating under. At my company, we are moving rapidly and decisively away from reliance on the billable hour in part because we think it encourages this sort of short-term behavior. The firms that are trying to accomplish this and are willing to help us achieve our goals, will earn an increasing share of our business.

It isn’t about your big trials. Everyone likes to win. Anyone who has ever had anything to do with a big trial victory can attest to how sweet that win can be. And yet, sophisticated in-house litigators understand that very few cases will ever get tried. The whole litigation process is about getting to final resolution at the lowest possible overall cost. The best outside litigators know this and focus on getting the best results for the company even if it means not necessarily generating huge discovery and pretrial billings for their law firm.

It's all about values. Not everyone will agree with me, but I believe no one, inside or outside, is a great lawyer unless he or she practices law in a manner consistent with the highest values and finest traditions of the profession. Society's expectations of its corporations are changing and expanding. Companies will succeed in the future only if their business practices are aligned with these new and heightened expectations. In-house lawyers have to be at the very heart of this effort. We need outside counsel to roll up their sleeves and join the struggle. There will be no place at the table for stragglers.